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IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN DURBAN

                                                                                                    CASE NO  D52/2008

HEARD AND DELIVERED ON 22.02.2008

IN THE MATTER BETWEEN:

CTP LIMITED                                                                                                             Applicant

and

THE STATUTORY COUNCIL OF THE NEWSPAPER,

PRINTING AND PACKAGING INDUSTRY                                                   First Respondent

KOJANE, BONSILE NO                                                                          Second Respondent

THE SOUTH AFRICAN TYPOGRAPHICAL UNION                                   Third Respondent

NARAINSAMY, JAYSEELAN                                                                    Fourth Respondent

JUDGMENT

PILLAY D,J   This urgent application to stay a writ of execution is dismissed for the following reasons:

1. Urgent applications for staying writs of execution is not there for the asking.  The Court has a discretion, exercised judicially, to grant or refuse urgent applications.

2. The applicant employer has failed to satisfy the Court that it will suffer irreparable harm if the application is not granted.  The applicant can stop the sale in execution by paying the amount of R57 893,30 awarded to the fourth respondent employee on condition that the employee refunds it if the review application is successful.   The employee has invested his provident fund of R307 428,57 and owns a house with his wife.  He is not a person of straw. 

3. The applicant has failed to satisfy the Court that the balance of convenience favours the granting of the application.  The award reinstated the employee, but as the applicant has not employed him, he does not earn a living.

4. The applicant has failed to date to file the record of the arbitration.  The review was filed on 21 November 2007; however the applicant does not say when before the 1^st of February 2008 it demanded production of the record.  The delay in prosecuting the review is prejudicial to the employee and an order dismissing this application is more likely to expedite the review as the applicant would want to recover its payment as soon as possible.

5. In reaffirming the difference between review and appeal the judgment in Sidumo & Another v Rustenburg Paltinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) has raised the bar against granting review.  The applicant’s ground of review is that the arbitrator committed a gross irregularity in “not properly, adequately or satisfactorily consider(ing) the entirety of the evidence presented before her”.  Whereas the application had better prospects of succeeding when the test for

6. review was the rationality and justifiability of the award, those prospects have diminished under the reasonableness test.

In the circumstances the application is dismissed with costs.

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Pillay D, J

Date Edited: 3 August 2008

Appearances:

ON BEHALF OF APPLICANT                :                                                  P T BUSH

ON BEHALF OF RESPONDENTS        :                                                 M BINGUM

IN THE LABOUR COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

 

HELD AT DURBAN

 

CASE NO                                                  :                                                       D52/08

DATE                                                         :                                                22.02.2008

CTP GRAVURE (PTY) LTD

 

versus

 

J NARAINSAMY & 3 OTHERS

 

BEFORE THE HONOURABLE MADAM JUSTICE PILLAY

ON BEHALF OF APPLICANT                :                                                  P T BUSH

ON BEHALF OF RESPONDENTS        :                                                 M BINGUM

INTERPRETER                                         :                                       NOT REQUIRED

REPORT ON RECORDING Clear recording.

 

SNELLER RECORDINGS (PTY) LTD

DURBAN

TEL:  031 – 266 5452

FAX:  031 – 266 5459

TRANSCRIBER’S CERTIFICATE

This is, to the best abilities of the transcriber, a true and correct transcript of the proceedings, where audible, recorded by means of a mechanical recorder in the matter:

CTP GRAVURE (PTY) LTD v J NARAINSAMY & 3 OTHERS

CASE NO                                                  :                                                       D52/08

COURT OF ORIGIN                                  :                   DURBAN LABOUR COURT

TRANSCRIBER                                        :                                      MS L J PICKLES

DATE COMPLETED                               :                                                19.05.2008

NO OF TAPES/CD                                   :                                                              CD

NO OF PAGES                                         :                                                                  4

SNELLER RECORDINGS (PTY) LTD

DURBAN

TEL:  031 – 266 5452

FAX:  031 – 266 5459

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